Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 72

P1192/14

OPINION OF LORD UIST

In the petition of

ANATOLII KOSENKO

Petitioner;

for Judicial Review of decisions of the Secretary of State for the Home Department

Petitioner:  Forrest; Drummond Miller LLP

Respondent:  McIlvride, QC; Office for the Advocate General for Scotland

9 June 2015

[1]        The petitioner is a national of Ukraine who was born on 30 May 1955.  He entered the United Kingdom on 15 January 2014 under a visit visa granted on 22 November 2013 and valid until 22 May 2014.  He claimed asylum on 15 May 2014 on the ground that he had a well-founded fear of persecution as he was a member of a particular social group, being an ethnic Russian and Russian speaker in Ukraine.  His application for asylum was refused on 12 November 2014 by the Secretary of State for the Home Department, who certified it as clearly unfounded and, subsequently on 19 November 2014, issued directions for his removal from the United Kingdom.  The Secretary of State was obliged to certify the petitioner’s claim as clearly unfounded unless satisfied that it was not clearly unfounded under section 94 of the Nationality, Immigration and Asylum Act 2002.  As neither of these decisions is capable of being appealed the petitioner seeks to have them reduced in these proceedings.  Since the removal direction issued by the Secretary of State is now spent, the only live issue is whether the decision of 12 November 2014 certifying the petitioner’s claim for asylum as clearly unfounded should be reduced. 

[2]        The petitioner avers that, although he is a national of Ukraine, he speaks Russian, is an ethnic Russian and lives in Ukraine in an area where such people live.  Between his arrival in the United Kingdom and 15 May 2014 he learned that unrest in Ukraine had erupted into violence, that ethnic Russian people and Russian speakers were being attacked at random by anti-Russian groups of rebels, and that the Ukrainian authorities seemed unable to protect ethnic Russian people and/or Russian speaking people such as the petitioner.  He fears returning to Ukraine as information he has received indicates that it is not safe for ethnic Russians or Russian speakers to return there because of the eruption of violence in that country.  According to the information he has received, the Ukrainian authorities are unable to protect him and he cannot safely live elsewhere in Ukraine because the violence is so widespread. 

[3]        In her decision letter the Secretary of State pointed out that the petitioner had not claimed to have personally encountered any problems as a result of his race or language and that he had not advanced any evidence to show that he knew who it was that he feared.  She stated that the background evidence demonstrated that there was an internal security network in Ukraine that had the means to provide him with protection should he require it either immediately on his return or at any time in the future.  She concluded that the level of protection, while it was not absolute, satisfied the requirements laid down in the case of Horvath v Secretary of State for the Home Department [2001] 1 AC 489.  The Secretary of State also considered whether the petitioner would not have a well-founded fear of being persecuted in part of Ukraine and he could reasonably be expected to stay in that part of the country.  She noted that Ukraine has a population of over 44 million people, 17.3% of whom considered themselves to be ethnic Russians.  29% of Ukrainians considered Russian to be their native language, with a further 20% considering both Ukrainian and Russian to be their mother tongue.  While Russian speakers were predominantly based in the east of Ukraine, 25.3% of citizens in Kiev stated that Russian was their first language.  As the petitioner also spoke Ukrainian, she did not consider that there would be any issues for him with language in Kiev and the west of Ukraine, which would be suitable for internal relocation.  She considered his ability to relocate in light of the decisions in the cases of Januzi v Secretary of State for the Home Department [2006] UKHL 5 and Secretary of State for the Home Department v AH (Sudan) [2007] UKHL 49 and concluded that it was not unreasonable to expect him to return to Kiev or any other areas of western Ukraine.  She further concluded that there was no reasonable degree of likelihood that the petitioner would be at real risk of persecution in Ukraine on account of being an ethnic Russian or Russian speaker. 

[4]        The petitioner maintained that the Secretary of State had erred in law in considering his claim to be clearly unfounded on the grounds of sufficiency of protection and internal relocation available in Ukraine.  The submission was that a claim can be certified as clearly unfounded only if the Secretary of State is reasonably and conscientiously satisfied that the claim must fail (R (Yogathas and Thangarasa) v Secretary of State for the Home Department [2003] 1 AC 920) or if the claim could not on any legitimate view of the relevant facts succeed.  The test to be applied was therefore a high one.  In concluding (between paragraphs 22 to 34 of her decision letter) that there was a sufficiency of protection for the petitioner in Ukraine the Secretary of State had referred to the decision in Horvath and to a BBC report.  In doing so she had, claimed the petitioner, erred in law.  His claims may not amount to a well-founded fear of persecution but it could not rationally be said that they were clearly unfounded and certification was therefore not appropriate.  Moreover, there was an absence, or at least an insufficiency, of rationality in the Secretary of State’s decision that the petitioner could internally relocate on return to Ukraine.  Reference was made to AH and others (Sudan) v Secretary of State for the Home Department [2008] 1 AC 678, per Lord Bingham of Cornhill at page 683, paragraph 5. 

[5]        The submission in response for the Secretary of State was that the petitioner had failed to demonstrate that there was any prospect of his asylum claim succeeding before the First-tier Tribunal.  The question for the court was whether the Secretary of State was entitled to reach her decision on the material before her.  It would not be unfair to characterise the present claim as a hopeless one.  The Secretary of State was prepared to accept that the petitioner subjectively had fear of persecution but he had failed to specify from whom he feared persecution.  Mass disorder differed from persecution and could found a claim for humanitarian protection.  The petitioner did not incriminate the State authorities in Ukraine but the Secretary of State looked at all the material available and her discussion, reasoning and conclusion could not be faulted (Horvath per Lord Hope of Craighead at page 494G‑H and page 500F‑H and Lord Clyde at page 511A‑D).  The petitioner had failed to present any evidence to the Secretary of State that the State in Ukraine was unwilling to afford him protection.  So far as the question of internal location was concerned, it would not be unduly harsh for the petitioner to relocate.  Quite a large proportion of the population of Ukraine spoke Russian.  The petitioner was not someone who spoke only Russian: he was able to speak Ukrainian as well.  The Secretary of State had concluded on the basis of objective information that the petitioner would be able to relocate if necessary. 

[6]        In my opinion the petitioner’s application for asylum was indeed hopeless and so is this application for judicial review.  The simple fact is that he failed to provide any material to support his claim that he would be at risk of persecution if returned to the Ukraine.  He is someone who is in the same position as millions of his countrymen in that he is an ethnic Russian who is able to speak Russian.  The Secretary of State was well entitled to conclude that he was not at real risk of persecution in Ukraine and that, if necessary, he could internally relocate.  There is no merit in this petition, which will be refused.